Dealing with the Litigation Shell Game

Here is one way of handling the shell game. This could be split up into bite sized pieces and then filed one at a time, but then you might lose the flavor of it. The interesting thing about this pleading is that it takes the pleading and affidavits of the forecloser and uses it  against them. The affidavit for summary judgment after 3 years was completely deficient of any thing that wasn’t naked hearsay and speculation signed by an unauthroized person. The point made is “Is this best you can do after 3 years?”


  1. Plaintiff has yet to respond to discovery requests despite repeated demands that they do so. Additional discovery is now required as to the sudden “appearance” of the note which Plaintiff presumably will rely upon. The Plaintiff has been known to use false created “photo-shopped” documents. If the real note was actually available, then it would have been delivered with the alleged assignment.
  2. The attachments are objected to for the same reason as to landscape mode. In addition, they clearly show confusion on the part of the Plaintiff as to which entity is claiming to be the creditor who could submit a credit bid at auction. What is readable shows that Lender is named as Chase Bank USA, N.A.

2.1.  Plaintiff has failed thus far to allege or answer discovery that would indicate whether the loan closing was complete (the note not having been signed by XXXXXXXXXXXXX), and whether Chase Bank USA, NA was the entity that actually funded the loan and therefore was the proper payee and secured party. Past conduct indicates that Plaintiff either cannot or will not respond to the essential question of the obligation to repay the actual creditor who advanced the funds for the loan or the party who has purchased the loan, and whether that purchase was supported by consideration or was even accepted by the assignee.

2.2. Prior pleadings indicate the loan is claimed to be part of a REMIC pool in which the loan was utilized as an asset to issue mortgage backed securities (mortgage bonds), but the Plaintiff insists on filing the papers on behalf of entities that have no current interest in the loan nor is it likely that they ever funded or purchased the loan.

2.3.  Plaintiff has thus failed to provide essential information allowing the Defendant to pursue modification under HAMP or HARP programs because there is no assurance that any of the parties on any of the documents are either the authorized servicer nor are they the creditor. Hence the “consideration” required of a modification proposal cannot be accomplished without knowing the creditor, knowing the authorized representative and commencing the modification process.

  1. These objections and motion to strike are not hypothetical. Plaintiff has already attempted to use a false affidavit in this case from an unauthorized person in support of its motion for summary judgment, which was amply demonstrated at the time of the last  hearing. Plaintiff fails to allege or offer who the originating the lender was, and fails to state the current ownership of the loan.
  2. Plaintiff is attempting to circumvent the rules of evidence and the rules of civil procedure by filing false affidavits signed by unauthorized persons, whose very existence cannot be determine by reasonable due diligence on behalf of corporate entities whose very existence cannot be determine by reasonable due diligence.

4.1. If a competent witness existed that could testify from personal knowledge and provide foundation of the documents upon which Plaintiff relies, there was plenty of time for Plaintiff to have submitted an affidavit from such competent witness. The absence of such a witness is apparent, and the attempt to “snow” the court with paperwork to cover up a botched closing and false securitization is obvious.

4.2.  Plaintiff has chosen to merely withdraw its claim for a lost note but has failed to produce it despite repeated requests in discovery.

4.3.  And Plaintiff now attaches “copies” of an “allonge” executed by Cynthia Corona on behalf of Chase Bank USA, NA endorsing the alleged note to Chase Home Finance as “assistant Treasurer” without indicating which company she was employed with — it being apparent that neither Defendant nor Plaintiff can locate said Cynthia Corona as an authorized officer with appropriate Corporate resolutions to transfer anything, and there being no indication that the endorsement was for “value received.”

4.4.  All of these apparently fabricated events and documents are contrary to the other facts alleged in the case in which the endorsement was to a REMIC (See below) which apparently is alleged to have provided funding by sale of mortgage bonds to investors.

4.4.1.                  However, the Plaintiff fails to answer discovery requests that would show the funding from the REMIC nor the authority of either Chase Bank USA NA or Chase Home Finance to represent the REMIC which is a trust, in which the supposed trustee is US Bank.

4.4.2.                  Further, no answer has been forthcoming identifying the accounts or accounts in which money was disbursed or received on behalf of what the Defendants claim to be the real creditor, the REMIC described below. Based upon experience with the same parties in other cases it appears as though the closing documents were diverted from the actual source of lending wherein the REMIC was not named as Payee and the money for the loan was diverted from the REMIC thus leaving the opening for any party to claim a relationship with the payee on the note as lender or assignee.                 Plaintiffs failure to answer such basic questions in a simple foreclosure is disconcerting, to say the least. Defendants wish to settle the case through modification or mediation but are repeatedly blocked by the Plaintiff in this case from access to information that is either in the possession of their agents or affiliates or which does not exist. No party can consider the offer of modification under HAMP or HARP without being the creditor or an authorized representative of the creditor. Plaintiff refuses to provide any information on this subject and chooses to go forward with a dubious foreclosure case which has lingered for over 3 years.                 None of the facts sought by Defendant exceed any of the information, documents or media that were necessary to be present at the time the suit in foreclosure was filed. If they in fact do not exist, then the suit should never have been filed and the action should be dismissed with prejudice as to these plaintiffs.

  1. The lender stated on the Mortgage is Chase Bank, U.S.A., a named entity that has never been repeated or connected with the parties stated to be the Plaintiffs in this case and quite contrary to the actual fact that the loan was funded by investors in a REMIC that Defendants now admit to be called J.P. Morgan Mortgage Acquisition Trust Corp 2006-CH1. This is therefore the claimed creditor, but he documents do not show any record of a money or document trail, except those prepared strictly for court proceedings, indicating why the Trust Corp. (REMIC) was not named on the note and mortgage or, if acquired, when it was acquired, what type of transaction occurred, whether it was for value received, and whether there was an offer and acceptance of the assignment, which of course would be impossible at this late stage because the close-out date under the securitization documents, and under the Internal Revenue Code expired years ago, and in any event, the assignment could only be considered an offer to sell that could not be accepted because it is, according to the defendants a non-performing loan contrary to both the requirements of the REMIC provisions and the provisions of the PSA.

5.1.  This leaves the loan without proper documentation, without a perfected lien, without a note describing the true creditor, and  with repayment provisions different from those promised the investor lenders who advanced the money for mortgage bonds that the borrower is not alleged to have ever acknowledged or signed.

5.2.  Plaintiff fails to allege or offer answers in discovery to explain the location of the note, the completion of the loan transaction, the trail of money or the trail of documents, all of which were manufactured for this lawsuit to cover up the fact that the Plaintiffs were in fact using the loan was though they owned it for the purposes of trading and obtaining insurance that should have reduced balances due to the actual creditor, and hence the balances due from the borrowers whose only obligation to the lenders, thanks to the botched paperwork of the intentionally fabricated loan closing, is a common law obligation to repay the funds. Yet the defendant  still wishes to seek a modification rather than a nullification because of the intent of the investor-lender in lending the money and the intent of the homeowner in borrowing the money.

5.3.      The Plaintiff explains nothing about the named mortgagee in the proffered affidavit.

5.4.      The identity of the true lender and creditor was intentionally withheld from the Defendant because this would have alerted him to the fact that the mortgagee stated on the Mortgage was a different entity than that which sues him now.

5.5.      The investors (pensions funds etc., whose identity has been improperly withheld from the Defendant, thus preventing the attempt at settlement under mediation or HAMP or HARP.

  1. The affidavit in support of summary judgment is filed on behalf of “U.S. Bank as Trustee for J.P. Morgan Mortgage Acquisition Trust Corp 2006-CH1.” Clearly this is the entity that is intended to be described as the creditor, but the Plaintiff has yet to explain any facts leading up to that conclusion thus depriving the Defendant of the ability to prepare a defense to facts that are in the exclusive possession of the four parties that appear to have some pleading or document filed as a stakeholder in the instant mortgage loan (Chase Bank, Chase Finance, US Bank and JP Morgan Acquisition Trust).

6.1.      The affidavit itself and the Notary indicate that it was executed on April 9, 2012.

6.2.      The affiant is reported to be Ronald L. Thomas as Vice President, JP Morgan  Chase Bank N.A.

6.2.1.       Nowhere does the affidavit even attempt to state that said Ronald L. Thomas is an authorized officer of U.S. Bank, Trustee. Yet the notice of filing states that it is U.S. Bank filing the affidavit.

6.2.2.       Nowhere does the affidavit state that Ronald L Thomas is an authorized officer, trustee or representative of J.P. Morgan Mortgage Acquisition Trust Corp 2006-CH1.

6.2.3.       From beginning to end there is no basis to determine the alleged relationship of the affiant to the companies or trusts that are alluded to in the notice of filing.

6.2.4.       Nowhere does the affidavit establish personal knowledge of the facts or authority of said Ronald L Thomas to sign on behalf of U.S. Bank or J.P. Morgan Mortgage Acquisition Trust Corp 2006-CH1.

6.2.5.       Nowhere is the identity or corporate or other legal existence of J.P. Morgan Mortgage Acquisition Trust Corp 2006-CH1 been alleged or offered in the affidavit to be an existing legal entity.

6.2.6.       Investigation of J.P. Morgan Mortgage Acquisition Trust Corp 2006-CH1 reveals that no such entity exists as a trust or as a corporation and none is alleged by the Plaintiff.

6.2.7.       Investigation of the signatory Thomas reveals that his name appears repeatedly on robo-signed documents in many other cases and his employment cannot be verified with either U.S. Bank or J.P. Morgan Mortgage Acquisition Trust Corp 2006-CH1. Upon information and belief said signatory does not exist and/or has no employment relationship with any of the parties referred to herein, and/or has no authority properly granted and authenticated to sign any legal paper on behalf of the Plaintiff or J.P. Morgan Mortgage Acquisition Trust Corp 2006-CH1.

6.2.8.       After extensive due diligence, J.P. Morgan Mortgage Acquisition Trust Corp 2006-CH1 does not appear to exist as a legal entity but was the actual lender and source of funds and therefore the actual party with whom the Defendants transacted business on the day of the funding of the loan from an escrow account at Chase Bank or one of its subsidiaries .       Hence the pleadings and exhibits proffered by Plaintiff prove that that the named Payee on the note and the named mortgagee should have been an entity, to wit: U. S. Bank, as Trustee for J.P. Morgan Mortgage Acquisition Trust Corp 2006-CH1, which should have been organized into a legally recognizable business REMIC entity under the federal and state law.       The reason they didn’t do that was because they were making extensive use of their own claims to ownership of the loan when trading credit default swaps and purchasing insurance, cross guarantees and other credit enhancements that would inure to the benefit of the intermediaries including the Chase investment bank entities.       Plaintiff’s allegations and exhibits show a different story that would require them to obtain an assignment from the REMIC       Plaintiff is attempting to side step this issue because it runs to the heart of the ability to foreclose. Defendants object to the affidavit as an attempt to re-write history without any foundation by a competent witness.       Plaintiff is creating the illusion that the origination of the loan conformed to the parties and terms alleged in this foreclosure action. Their pleadings and affidavits are clearly intended to obscure the truth, and fail to support that illusion nor even the existence of investors or an investor group or entity that could make a claim.       In fact, there is no evidence that the investors even know about these proceedings nor who the proceeds of foreclosure would  be paid after denuding the estate by continuous fees all to the detriment of the lender, in violation of the terms of the loan to the lender (as expressed in the Pooling and Servicing Agreement that the Plaintiff has failed to provide and without which they can make no claim).       The REMIC was created allegedly by the terms of the PSA. The PSA was not attached because it would show clearly that the cutoff date for the pool, even if it existed expired long ago and that the acceptance of the loan which is declared in default was an ultra-vires act by the “Trustee” or manager, U.S. Bank.

6.2.9.       Defendants accordingly deny, subject to the special appearance denoted above, that the attachments, pleadings and affidavit are authentic or authorized and further deny that a foundation was or even could be proffered by this Plaintiff.

6.2.10.   Further, Defendants deny that the amounts stated are correct in that they appear to be taken from the accounting of the subservicer and exclude the accounting of the Master Servicing where all financial transactions are recorded.   Based on Defendants’ own investigation, the subservicer and Master servicer distributed payments to the Plaintiff or Plaintiff’s successors before, during and after the declaration of default and the foreclosure suit was filed. The records of the Master Servicer would show those payments as would the recipient of the those funds, whose records are not attached to the proffered affidavit, nor does signatory Thomas allege any personal knowledge of the amounts due or how payments were allocated to the actual creditor as it may have changed from time to time. Accordingly the Defendants deny the debt, deny the default, and deny that the amounts claimed are correct as well as deny that the claimed amounts are owed to the Plaintiff or any entity related tot he Plaintiff.   Defendants therefore affirmatively state that the party to whom money is owed or was owed has not been identified, and that no accounting has been forthcoming from the actual party entitled to submit a credit bid at a foreclosure auction on the basis that an obligation is owed from the Defendants to that party and that the specific obligation owed by the Defendants, or what is left of it after receiving payments from the sub-servicer and Master servicer, was in fact secured by a perfected lien on the property of the Defendants at the time of the “closing” of the transaction, nor that such lien could still be valid even if it was valid at the time of the closing.   Defendants affirmatively state that it is the obligation of the Plaintiff to prove the damages on the claim that that the plaintiff is neither the creditor, nor does the Plaintiff have any relationship with any natural person or legal entity possessing such information as to the current status of the debt, the current identity of any party to whom money is actually owed and whether that obligation was secured and remains secured by a mortgage lien on the Defendants’ property.

6.2.11.  Attached to the alleged affidavit are printouts from a computer, which is neither explained nor supported by any declaration of the Affiant. If Plaintiff possesses the required accounting to support its claim of a default, it has yet to provide it. In fact, the computer printouts affirmatively show that they were produced in April, and come from “3270 explorer: OLLW Letter (PL13)” which is not explained in the alleged affidavit and contain no reference to J.P. Morgan Mortgage Acquisition Trust Corp 2006-CH1 nor even the Defendants, with even the loan number redacted! Some of the attachments contain the borrower name and some do not,  but even on those with the name borrower the loan number is partially redacted. Plaintiff has thus failed to prove or offer proof that the original loan still exists or that the original loan is now owed to U.S. Bank, as Trustee or J.P. Morgan Mortgage Acquisition Trust Corp 2006-CH1. Most pages refer to the name “Chase” or JP Mortgage Chase, N.A. and some refer to Chase Home finance, LLC Accordingly, the Plaintiff has failed to even offer any records covering the entire period of the alleged loan much less the receipt of payments from the subservicer, master servicer, insurance and credit default swaps all of which are known to Defendants to be expressly waiving subrogation. At a minimum the obligation of the Defendant was reduced if not obliterated by such payments and credit enhancements, meaning that the Plaintiff is attempting to collect on a debt owed to the actual creditor (the party who could submit a credit bid at auction because the obligation is actually owed to that creditor was secured by a proper mortgage whose encumbrance upon the land was perfected. Upon information and belief based upon opinion and facts from experts investigating this transaction, the original creditor no longer exists and the obligation is owed, without being secured by a perfected mortgage lien, to some other party who is only entitled to the net amount due on the obligation after reductions and allocations for payments received on Defendants’ obligation. In any event, the Plaintiff deftly attempts to sidestep this issue by not addressing it at all and filing a standard damage affidavit in a non-standard transaction. Failing that, the Plaintiff has no right to foreclose and neither does any other party, without reforming the instruments or imposing a trust upon the property.

6.3.      Paragraph 6,of the proffered affidavit to support Summary Judgment fails to identify the Lender. This is intentional since the attempt here is to re-write history and make it appear that what he is attempting to state now is the same way the loan was originated, which serves as yet another ground for exception and objection by the defendants.

6.3.1.     The Affidavit, being the culmination of three years to litigating and research, Paragraph 7 fails therefore to state a basis, foundation or history under which the Defendant could be in default, since the records upon which the affiant relied, even if they were admitted, were not the full records of receipts and disbursements to the actual identified creditor(s0, the use of which term is assiduously avoided by Plaintiff’s boiler-plate affidavit. Defendant’s object to the statement of default, the terms of the default and the lack of foundation and competency to declare the defendants in default.     In fact, the affiant fails to identify when the Defendants supposedly went into default and to whom the Defendant was in default — meaning that the creditor to whom the money was owed was actually still receiving payments even though Chase and all its subsidiaries were treating the loan is default. Response to discovery demands would show facts leading to the discovery of admissible evidence that the plaintiff was intentionally hiding the activities relating to payments and disbursements and status of the loan from the investor(s) who believed that the mortgage bond they purchased conveyed to them an undivided interest on Defendant’s loan when in fact Defendant’s loan was not in the REMIC pool and cannot be placed in the REMIC pool without adjudicating the rights of the investors to their detriment without notice of a hearing on the merits. to wit:    Plaintiff is attempting to get his court to rule that the loan they say is in default must now be accepted into a pool and specifically is in J.P. Morgan Mortgage Acquisition Trust Corp 2006-CH1. This is an attempt to get this court to violate the PSA and prospectus to the detriment of the investors.    This transaction , along with many others like it after years of NOT being in said pool is now being forced down the throats of the investors contrary to the terms of their  agreement in their prospectus and PSA was that they would only accept industry standard loans in good standing within the 90 day cut-off period required by the PSA and the REMIC statute.    By having this court rule that the loan should be treated as being in the “trust” when there is no trust and the investors are essentially in a common law general partnership, these intermediaries are attempting to create a judicial ruling that will cover the tracks of their misbehavior.    Such a ruling requires the investors to accept loans NOW that they previously were told and assured by the prospectus and PSA and agreed would NOT be part of the pool and for which their money would NOT be used for funding the loan. And yet their money was used to fund the Defendants’ loan outside of the chain of securitization documents whose only purpose to crate the illusion of transferring ownership in order to facilitate trading by the intermediaries in which they claimed ownership of the loan for purposes of collecting insurance, proceeds of credit default swaps, bailouts, government purchases and credit enhancements.    Such investors are necessary and indispensable parties since the ruling by this court will adjudicate the rights of investors to reject loans that they already agreed they would never accept.

  1. 7.    This entire lawsuit is an inauthentic attempt to cure a botched loan closing that was intentional and/or grossly negligent to obscure the facts, create illusions of ownership and a vehicle to defraud this Court, the defendants’ who face multiple liabilities, and the investors who are being forced to accept “bad” loans outside the cut-off period and outside the parameters of an acceptable loan. IN the end, the Defendants intent to make both the lender and the borrower the losers in this transaction, when the Defendant in good faith wishes to settle on honorable terms, including a perfected lien even though no such lien currently exists.

19 Responses

  1. I’ll keep you in my Prayers Zur, and I Wish You the Best of Luck. Your definatly a fighter. Just a thought … you should file an appeal, if anything… just to be a thorn in their side. It just might be worth your while … no sense in taking chances.

  2. @Shadowcat: Thanks! I lost the case, but it’s weird–the Defendants aren’t really acting like they won. That is to say, it’s been at least 4 months since they “won” and they still haven’t taken the house yet. I did not expect that. In fact, as I read the judge’s order again, I can see why the Defendants might still be somewhat reticent to take the house. Or maybe I’m just being overly optimistic, I’m not sure.

  3. @Zur, I’m sorry you lost your case. I thought you did a wonderful job for pro se. I came here to see how other states were handling this mess, especially non-judicial states like Az. Lots of investers here closing on Az properties, some homeowners, but mostly investers buying up blocks of houses and renting them. They never even gave retirees in Az a thought …. stole their money and pulled the rug from under them before they knew what happened. Just soooo Wrong!

  4. “…his final order granting the MSJ to the Defendants read as if the Defendants had written it.”

    YES! Exactly. Hey, the lawyers do the all the work for the judge and the judges ignore all of the discovery because they CAN. I really would like to talk to these judges and find out what makes them tick…is it really just fear—of losing their pensions?

  5. @ carie: I agree when you said “These judges definitely have a “sinister” agenda.”

    @dcbreidenbach: you said “even liberal discovery does not balance the scales–full blown litigation and discovery against multi-natl corps is too expensive to be a practical solution to the vaste majority of people-”

    I agree totally. I actually was granted discovery. And the Defendants admitted to a lot of things and even volunteered some great points that I didn’t even ask for. I did a deposition of a key employee among the Defendants. But the findings in discovery were ignored by the judge–literally every damning fact I came up with in discovery was ignored by the judge, rendering the discovery ultimately useless to me. In fact, as I look back on it now, I can see that the judge didn’t really even read my briefs/pleadings past my first amended complaint. At the one hearing we had during the case, the judge even admitted when he walked in the room that he hadn’t read my brief but that he HAD read the Defendants’ brief. So it’s no surprise really that his final order granting the MSJ to the Defendants read as if the Defendants had written it.

    You also said: “it is not right nor lawful under the constitution to predicate preservation of vital civil rights upon each citizen raising $100 k to defend and force the collector to prove his right—UCC is obsoleted in this narrow context” I completely concur. That’s always their excuse–“Well, you have every right to hire a hotshot lawyer and drag this on for years and pay for multiple depositions and experts and reports and audits, etc.” Yes, we do have that right in theory, but in reality, very few people can afford anything like that.

  6. I think they pulled the rug out steve. People seem saddened that S Ct decided to do the unusual and dodge the issue. I suppose that makes it the more important. Certainly seems odd that there would be a federal right to statutory damages under RESPA cut off by the state of ohio —the case involves a RESPA suit for making a fee kickback where Ohio had mandated uniform insurance rates. seems like the kickback is gonna bite the homeowner somehow or the companies would not be doing it. even literally if the statute gives damages for a bad act–its still a bad act even if they all do it. it is corruption–does this inference mean that US S Ct …….??? I guess they just dont want to take a position on corruption. ????…..other corruption cases creating causes of action with no proof of damages shown would cetainly promote bounty hunting in class actions——yes it was a big deal

    No. 10–708
    [June 28, 2012]
    PER CURIAM. The writ of certiorari is dismissed as improvidently granted.
    It is so ordered.

  7. DCB..and others…..maybe Neil….a missed decision by Supreme Court and its implications….follow the STANDING.

    ‘Sleeper’ Supreme Court Case Asks Whether Constitution Bars Suits by Uninjured Consumers
    By Debra Cassens Weiss
    Sep 28, 2011, 05:30 am CDT
    A case pending before the U.S. Supreme Court considers whether consumers who suffer no financial injuries have standing to sue for statutory violations under Article III of the Constitution.

    The case before the court involves “the mundane business of title insurance,” Forbes reports. “But companies from Facebook to the automobile manufacturers have weighed in with briefs urging the high court to overturn a 9th Circuit decision that they say would allow lawyers to assemble class actions any time they discover a company has violated a law or regulation.”

    Mayer Brown lawyer Donald Falk calls the case “the big sleeper of the term,” Forbes says. He filed an amicus brief (PDF) on behalf of automakers that argues plaintiffs unaffected by a legal violation do not have standing to sue.

    The San Francisco-based 9th U.S. Circuit Court of Appeals had allowed the class action filed by Cleveland homebuyer Denise Edwards. She had sued First American Title Insurance for paying an alleged kickback to a title agency that agreed to sell First American policies exclusively. Edwards did not suffer any financial injury, however, because an Ohio law required uniform pricing for title insurance.

    The 9th Circuit ruled (PDF) that Edwards had standing to sue for the statutory injury created by the Real Estate Settlement Procedures Act. RESPA bars the payment of any fee or kickback for referrals, and provides for damages of three times the amount paid for the improper service.

    The U.S. Supreme Court will consider only the standing issue. The case, First American Financial Corp. v. Edwards, will be argued Nov. 28. SCOTUSblog links to documents.

  8. Bottom line is that the whole discovery thing is a red herring—-the person asserting ownership and control of the note should be required under the circumstances of industry-wide neglect—to prove the note sufficiently to enable the debtor to defend if/when another claimant comes along

    even liberal discovery does not balance the scales–full blown litigation and discovery against multi-natl corps is too expensive to be a practical solution to the vaste majority of people-

    thus, the state law –the state judiciary has not reflected the consent orders’ findings of fact—–any presumption of authenticity authority arising out of UCC art 3 should be dropped in light of the consent orders—-judicial notice

    it is not right nor lawful under the constitution to predicate preservation of vital civil rights upon each citizen raising $100 k to defend and force the collector to prove his right—UCC is obsoleted in this narrow context

  9. so does the lack of standing

    It is a consitutional issue–but rarely cast in those terms—risk of double recovery—-loss of peace of mind—aka “pusuit of happiness”

    loss of employment choices–impaired freedom of movement–cant leave a no-deficiency state without permission of the mortgagee—a resurrection of feudal serfdom—denal of equal protection—

    there are numerous conlaw overtones never addressed because the general misconception is that 22 USC 1983 relates only to protection of minority rights

    I personally have never seen such blatant and pervasive deprivation of a broad swath of fundamental human rights—most lawyers do not know what substantive due process is—or would say its an obsolete concept


    October 3, 2012

    FDN now has access to Bloomberg for use in its securitization audits. You may contact us via the “Contact Us” link for more information. We are also in the process of establishing local network counsel in Georgia, which will result in the 44th law Firm to be added to the network.

    Jeff Barnes, Esq.,


    October 3, 2012

    Apparently, the loan mod scam continues. The most recent one we have been asked to review comes from Ocwen Loan Servicing. (this is the one which Judge Arthur Schack in NY previously found would have to have offices as big as Madison Square Garden if they actually serviced all of the loans they claim to service). The “offer” is beyond laughable. What is sad is that homeowners continue to be taken in by these “offers”.

    The Ocwen “offer” states, on the second page, that “Ocwen Loan Servicing will not proceed to foreclosure sale during the trial period if you are complying with the terms of the Trial Plan”. It is important to read that carefully: Ocwen will not proceed to SALE, and that is only if they determine that the homeowner is complying with the plan. Further, “sale” is only one phase of the foreclosure process. The next paragraph shows how illusory the “offer” really is:

    “During the trial period, we may accept your trial period payments and apply them to your account, but that will not affect foreclosure proceedings that have already started”. So, even though Ocwen accepts payments, the foreclosure process continues. In fact, this paragraph provides that Ocwen accepts payments, but that “this does not waive our acceleration of your loan or waive the foreclosure action and related activities.” Notice how broad that language is: “the foreclosure action” and “related activities”. So, the homeowner makes payments, all the while Ocwen presses on with the foreclosure, agreeing only to hold any SALE in abeyance. Of course, as soon as the loan mod is denied or the homeowner is told they are not “complying” with the trial agreement, the sale goes forward, and we all know that we have seen instances where servicers are sent the exact money due and proven to be received by the servicer on the due date, only to have the servicer claim it was not, resulting in a “default” with the foreclosure pressing forward.

    The agreement further states that “You agree that Ocwen Loan Servicing will hold each of your trial period payments that you make in a non-interest bearing account. Once there are enough funds in that account to make your full mortgage payment, we will apply the funds to your loan account to make that payment. At the end of the trial period, there may be funds left in your account because there is not enough to make a full mortgage payment. If so, we will apply those funds to your unpaid principal balance when we permanently modify your loan.” Note the repeated vague and conditional lauguage. What is a “full mortgage payment”? If they accelerated, is this the entire balance due to the end of the loan term? Does “when we modify your loan” mean that they will? Obviously what it means is if the loan is not modified, the agreement does not say where the money goes.

    We have been advised that the approval rate for permanent loan mods is roughly 2% nationally. Given that, it is more than obvious where the trial payment money goes when the loan mod is not approved: you got it: you, the homeowner, pay for the foreclosure expenses.

    If you receive one of these “offers”, have an attorney who does this kind of work review it. We have yet to see a real, bona fide “offer” which stops foreclosure while the trial process progresses, and the “offers” we have seen are illusory at best.

    Jeff Barnes, Esq.,

  11. sorry, I meant “he” was never going to dismiss “with prejudice”.

  12. @Louise

    You’d think.

    A friend of mine had a judge who actually said to her that he didn’t care about the real creditor or the accounting—she was never, ever going to dismiss a foreclosure “with prejudice”.

    These judges definitely have a “sinister” agenda.

  13. Staying on point might be fun. The judges are still not getting it and maybe it is more sinister than just not getting it. A month left before the election, and I am wondering if the admin. will do anything about foreclosures. The denial of discovery permeates throughout the litigation on these foreclosures so does the lack of standing. One of these cases has got to address the accounting and where exactly did the money go and to whom. We have yet to see that. I keep hoping.

  14. Ohhh.. It was talcom power not flour. hehehe Silly Me .. Long Term memory loss … its my story and I’m stickin to it!

  15. I never could figure out what she was talking about. Something about pennies and dimes. Strange Thou … I mean for that to pop into my head after all these years. Oh Well….

  16. In the old days Great Grandma said … Just roll it it flour and look for the wet spot. Plug it up and put it back in the cupboard.

  17. @dcb, you see the dilima … dont give away the ending if you get a poke… I mean peek. Let Neil finish the Story!

  18. Notably the debt collector(s) could simply have prepared a UCC 3-309 affidavit of lost note, set a surety against another party claiming—and moved forward. That is what they are supposed to do ….. but maybe the problem is that they cant get real employees to sign affidavits blindly. the low paid robosigners didnt ask questions and rightfully could say—I dont understand any of this stuff–i just “stamp and sign”

    There should not be this recurrent problem–forcing burdensome litigation costs upon debtors necessary to the debtor avoiding doubled-up liability on the original note—3 years of litigation to get to the place: please debt collector please give me the evidence I need to defend myself from another claimant with the original –or a really good copy. Today for most states this is where the UCC leaves the maker of a note. This is blatant denial of civil rights under color of state law–in deprivation of property and peace of mind–fundamental and substantive Due Process. The procedural Due Process allowed is inadequate to justify the deprivation of substantial civil rights.

  19. Yacky Yak and Dont Come Back! Excellent Report Neil! Mauhhh!!

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